James Stark (instructed by The Community Law Partnership Ltd.) for the Appellant

Christopher Stoner QC (instructed by Shoosmiths LLP) for the Respondent

Hearing date: 14 February 2017

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JudgmentLord Justice McCombe:

(A) Introduction

This is an appeal, brought with permission granted by Lewison LJ, from the order of 6 March 2015 dismissing an appeal from the order of 24 September 2014 of the Bristol County Court striking out paragraphs 10 to 12 inclusive of the Appellant's defence in the proceedings.

The Respondent's claim in the action is for a declaration that it is entitled to remove the Appellant's boat, ``The Mrs T'', from its property, identified as part of the canal known as the Kennet & Avon Canal (``the K & A Canal'') near Bradford-on-Avon, pursuant to statutory powers under s.8 of the British Waterways Act 1983 and s.13 of the British Waterways Act 1971. It also applies for injunctions restraining the Appellant from mooring his vessel on the K & A Canal and from mooring, navigating or securing the boat on any of its canals or waterways. The relevant paragraphs of the Defence raised a number of points in resistance to the claim, including a defence based upon Article 8 of the European Convention on Human Rights and Fundamental Freedoms (``ECHR'').

(B) Background Facts

The background facts are helpfully set out in the judgment of the learned judge in the County Court and counsels' helpful skeleton arguments from which much of the following is gratefully derived.

The inland waterways of England and Wales are to a significant extent vested in, and are managed and controlled by, the Respondent, the statutory successor from July 2012 to the British Waterways Board (``the BWB''). Anyone wishing to navigate or moor on such waterways requires one or more of a number of licences or consents from the Respondent. The various licences or consents to navigate are identified in section 17 of the British Waterways Act 1995. As in the present instance the Respondent may issue a consent to the user of the vessel on such a waterway on the basis that its operator satisfies the Respondent that it will be used bona fide for navigation on the waterways without remaining in any static position for more than 14 days or such longer period as is reasonable in the circumstances or on the basis the Respondent is satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available: see s.17 of the British Waterways Act (below). There are also powers conferred upon the Respondent to remove vessels in certain circumstances under s13 of the 1971 Act and s.8 of the 1983 Act, where a boat operator has failed to comply with the terms of his licence.

From about 2011, the Appellant has had his boat, ``The Mrs T'', on the K & A Canal. He has had a licence (originally granted) by the BWB, based upon a declaration by him that the vessel would be used for genuine navigation during the licence period. The Respondent took the view that the Appellant was not using the vessel in the manner permitted and, based on observations made, it considered that the boat had been confined to the same 5 km section of the canal from October 2011 to January 2013. It based its view on guidance that BWB had previously published (as to the correct operation of s.17 of the 1995 Act) in October 2011 and revised in May 2012 to reflect the transfer of functions to itself. The correct application of s.17 to the facts of this case is very much in issue between the parties in the action and it is common ground that the issues arising under the section will have to go to trial.

As a result of its view that the Respondent had contravened the terms of his licence, in January 2013 the Respondent notified the Appellant that it was treating the licence as terminated and gave the Appellant 28 days in which to remove the vessel from the Respondent's owned and managed waters. The Appellant failed to comply with this demand.

(C) The Proceedings

On 8 January 2014 these proceedings were commenced by a Claim Form under Part 8 of the Civil Procedure Rules (``CPR''). By Defence dated 14 March 2014 the Appellant took issue with the Respondent's contention that he had failed to comply with his licence conditions and with the Respondent's reliance on the Guidelines in its interpretation of s.17 of the 1995 Act. A failure by the Respondent to have regard to the duties under the Equality Act 2010 is asserted and then in paragraphs 10 to 12 the Appellant made the following averments, invoking Article 8 of the ECHR:

``10. The Claimants have failed to consider the Article 8 rights of the Defendant adequately or at all, they have failed to consider:

the Defendant has a disability which impedes his progress around the Kennet and Avon;

the Defendant's physical difficulties;

whether the Defendant would be able to comply with the continuous cruising requirement within a reasonable period;

[sic: d] the Defendant would be rendered homeless;

the interests of waterways users who rejected the Claimants consultation for a distance to be specified during continuous cruising in London (and it is averred this is applicable nationally);

whether the Defendant should be entitled to apply for a residential mooring where he currently resides;

whether the Defendant has used his best endeavours to find a residential mooring, but has been unable to find one;

that there is national shortage of available residential moorings suitable for the Defendant.

In the premises it is submitted that the Claimants' decision to seek an injunction and deprive the Defendant of his home is disproportionate and amounts to a breach of his Article 8 rights in breach of Schedule 2 of the Human Rights Act 1998.

Further, it is submitted that the Claimants have failed to consider the Defendant's Article 8 rights when taking proceedings against the Defendant and failed to consider whether their process accorded due deference to the Defendant's Article 8 rights.

In the premises the Claimants at no time appear to have considered the defendant's Article 8 rights, and /or his personal circumstances and/or the hardship which he would suffer if required to move from his mooring. It is submitted that the hardship to the Defendant would be profound. There are no alternative moorings. It is submitted that it would not be proportionate to require the Defendant to be evicted. In the premises it is submitted that an injunction should not be granted at this stage and/or that the declaration should be refused.''

In its Reply of 27 March 2014, the Respondent took issue with the Appellant's claims under Article 8 in a number of respects. In paragraph 18 it admitted that ``The Mrs T'' was the Appellant's home, but denied that he had a ``sufficient and continuous link'' with the K & A Canal to call it home for the purposes of Article 8. It was further denied that the primary purpose of the relief sought or any element of the enforcement process was to remove the Appellant from his home, as distinct from requiring ``The Mrs T'' to move off the Appellant's waterways onto other waterways where the Appellant could continue to live aboard her.

In paragraph 19 of the Reply the Respondent averred that it was to be presumed that the decision to begin enforcement was in compliance with its duties as owner and manager of the waterways and was proportionate. It was denied that any of the matters raised by the Appellant was sufficient to displace the presumption or to meet the ``high threshold'' of a seriously arguable case that the decision to terminate the Appellant's licence and to require the vessel to be removed was disproportionate for the purposes of Article 8.

In the remaining paragraphs of the Reply the Respondent pleaded materials to meet the Appellant's case if, contrary to its primary assertion, there was to be found that a seriously arguable case under Article 8 had been made out.

By Application Notice of 16 April 2014 the Respondent asked for an order dismissing summarily the Appellant's Article 8 defence.

The basis of the application was that the present case should be judged according to the same broad criteria applicable to public housing authorities who apply for possession of residential premises and are met by Article 8 defences, as considered in three cases: Manchester City Council v Pinnock [2010] UKSC 45 (``Pinnock''); Hounslow LBC v Powell [2011] UKSC 8 (``Powell'') and Thurrock BC v West [2012] EWCA Civ 1435. It will be recalled that it was said in Pinnock that in such cases,

``...if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained...'' (per Lord Neuberger of Abbotsbury, giving the judgment of the court, at [61])

Thus, in this case, the Respondent presented its argument on the basis that its position as the statutory body, entrusted with management of the waterways, was broadly analogous for present purposes to that of housing authorities bringing possession proceedings in respect of residential premises. Accordingly, the assumption should be that its decision to bring enforcement proceedings here was proportionate and that the Article 8 case made by the Appellant could be summarily dismissed.